On the constitutive elements of the victim's fault

2022-07-23
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From this case, we can see the constitutive elements of the victim's fault

[facts of the case]

the plaintiff and the defendant have a neighborhood relationship. Originally, there was no resentment between them. On the day of the case, the plaintiff threw sundries at the defendant's house, smashing two flowerpots of the defendant's house one after another. The defendant immediately came out to argue with it, but the plaintiff kept abusing, and the two sides quarreled. On impulse, the defendant slapped the plaintiff, resulting in the plaintiff's scalp hematoma, which constituted a minor injury, and caused a total of more than 2000 yuan of economic losses such as medical expenses. The plaintiff brought a lawsuit to the court and asked the defendant to bear all the above losses. The defendant replied that the plaintiff was also at fault for the occurrence of the damage, and the defendant should be relieved

[difference] in the trial, there are different views on whether the plaintiff is also at fault for the damage

the first view is that the plaintiff is not at fault for the occurrence of damage. The reason is that the plaintiff was at fault, or even deliberately at fault, for causing the defendant's property damage (breaking the flowerpot) and personal injury (abuse), because he seriously violated his duty of care for the person and property of others. However, she has no fault for her own losses (medical expenses caused by scalp hematoma, etc.), because she has no duty of care to prevent others from damaging herself. First of all, the plaintiff did not intentionally make himself suffer losses, because it was unreasonable; Secondly, the plaintiff has no fault for the occurrence of his own damage. Because the plaintiff should foresee the damage to others rather than his own behavior. The plaintiff's fault is for the defendant's loss, not for his own damage. At the same time, the plaintiff's fault behavior does not constitute a reason for the defendant to harm the plaintiff's health. For the plaintiff's behavior, the defendant can claim compensation for the loss and make an apology, but can not commit such a serious violation of the personal health of others. The plaintiff's physical damage was purely caused by the three basic configurations of the defendant's intelligence: the beating of, which should be fully borne by the defendant. The defendant is not at fault. In addition, the plaintiff's behavior or fault only has a causal relationship to the defendant's damage, but for its own damage, it cannot be determined that there is a specific causal relationship. The plaintiff's abuse only created a possibility and a condition for the occurrence of his own losses, not a cause. The plaintiff's injury was caused by the defendant's strike. The defendant's tort is the result of the defendant taking wrong measures to deal with the plaintiff's wrong behavior. The real reason is the defendant's indifference to the plaintiff's personal rights. The fault of the plaintiff does not constitute sufficient reason for the defendant to cause personal injury to the plaintiff. As mentioned above, for the plaintiff's behavior, the defendant can ask for an apology and compensation for the loss, rather than such a serious violation of personal health. It is untenable for the defendant to argue that the plaintiff is at fault for damage to the plaintiff

the second view is that the plaintiff is at fault for the occurrence of damage and should reduce the compensation of the defendant. The reason is that the plaintiff's behavior of breaking the flowerpot and personal abuse is the reason for the defendant to beat him, not a condition. Therefore, the plaintiff has a fault for the occurrence of his own losses. In nature, this fault is intentional rather than negligence. Obviously, it belongs to the situation that the defendant's compensation should be reduced

[comment]

the author agrees with the second view. The victim's fault, also known as fault offset, means that the victim's fault behavior constitutes the reason for the occurrence or expansion of the victim's damage. The existence of the victim's fault reduces the fault of the infringer, leads to the reduction of the infringer, and becomes the reason for offset. The constitutive elements of the victim's fault, which are different from those of the general tort and breach of contract, should at least include that the victim has committed an illegal or improper act, the victim's fault affects the degree of the infringer's fault, and the victim's behavior constitutes part of the cause of the damage consequences

the victim's fault is first manifested as an illegal or improper act. Fault refers to a psychological state that can be imputed, including intentional and negligent states. The psychological state of fault has a substantial impact on external things only when it is manifested as behavior. Otherwise, it is impossible to judge whether its intention or fault exists. When the victim is subjectively at fault and has carried out a certain behavior based on his fault Psychology (this behavior should be illegal or inappropriate: a special preference is plastic, otherwise it will not be imputable), the victim's fault constitutes a defense. From the perspective of defense, if the damage result is caused by the common fault of the victim and the perpetrator, the perpetrator can claim to mitigate his civil liability accordingly

the victim's fault must also have the situation that the victim's behavior constitutes part of the cause of the damage consequences. Taking the victim's fault as a defense, in essence, is to consider the sharing of damage consequences from the perspective of "external causes". In a sense, it is the extension and specific application of the theory of causality in the defense: the victim's fault behavior constitutes part of the cause of the consequences of damage, so the victim should bear part of the loss of the consequences of damage; Accordingly, the perpetrator should be relieved of civil liability. When considering whether a certain act of the victim constitutes "the victim's fault", we should consider whether this act constitutes part of the reason for the occurrence or expansion of the victim's damage. This behavior may not be a part of the damage behavior, but just an external cause, but it has a direct and positive impact on the occurrence or expansion of the damage

the fault of the victim should also include the elements that the fault of the victim affects the fault degree of the infringer. We can make a concrete analysis of the special case of "justifiable defense" to illustrate the influence of fault in the bearing of damage. We know that in the category of general tort, what the law punishes is the psychological state of fault, not behavior. In the case of justifiable defense, since the loss of the "victim" is all due to its own reasons, "the fault of the" victim "is all the reasons for the damage consequences, and the acts of others do not constitute the reasons for the damage consequences, the" victim "shall bear all the losses. If we further analyze the loss of the "victim", we can see that although the damage is caused by the justifiable defender

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